With the Apple v. Samsung patent trial underway, Apple is making its case that Samsung's phones and tablets are ripoffs of the iPhone and iPad. We’ve had extensive coverage of the testimony from our reporter in the courthouse, and we got our hands on some of the trial exhibits Apple is showing the jury.

As the plaintiff, Apple has steered the direction of the early parts of the trial. We’ll get to hear more from Samsung next week when it makes its defense. In the meantime, let’s look at some of the exhibits Apple has either shown the jury or submitted into the case's official record. These include side-by-side comparisons of Samsung and Apple devices, internal planning documents in which Samsung discusses features that are a bit too similar to the iPhone, and an Apple analysis of user interface features that allegedly violate Apple patents.

Samsung phones, before and after the iPhone

The above graphic requires little explanation. Apple is showing the jury that once the iPhone hit the market, Samsung’s designs started looking progressively more iPhone-like. After the January 2007 announcement of the iPhone, Samsung started pushing out its own touchscreen phones lacking a keyboard, as you can see in the next part of the trial exhibit:

None of the phones Apple shows from 2008 or 2009 could really be mistaken for an iPhone, but the Samsung models start resembling the iPhone a lot more in 2010 and 2011. The evidence Apple presents is in the picture at the top of this article.

Most people familiar with smartphones will see that those Samsung devices aren’t iPhones, since they include the familiar Android buttons at the bottom rather than a single home button. While Apple is showing Samsung products that hit the market after the iPhone launched, Samsung has evidence demonstrating that it was working on similar designs before the iPhone existed. Some of this evidence was ruled inadmissible because it was submitted too late in the legal process. But not all of Samsung's evidence was ruled out, as this exhibit in the case's official record shows:

Samsung tablets, before and after the iPad

Apple has argued that the Galaxy Tab's shape and look is too similar to the iPad to be a simple coincidence. Notably, the exhibit also includes Samsung's 7-inch Galaxy Tab, which is much too small to be confused with an iPad. The iPad has always been of the larger variety, but Apple is rumored to be building its own 7-inch tablet, and the Apple v. Samsung trial has made public more evidence that a 7-inch iPad is indeed in the works.

Samsung app icons "awkward," look like iPhone copies

The mere fact that Samsung phones and tablets are roughly the same size and shape as the iPhone or iPad likely isn't enough to win a big judgment for Apple. But Cupertino has other evidence, including a lengthy internal Samsung evaluation from March 2010 comparing the S1 to the iPhone. The document recommends changes in the user interface to reduce the impression that icon design was copied from iOS.

The Samsung planning document shows a comparison between the iPhone and the Samsung Galaxy S (or GT-I9000). It compares the Samsung device unfavorably to the iPhone, saying the iPhone's application icons are designed to "represent their functionalities" while Samsung's are "awkward" and cause confusion regarding each application's utility. The slide recommends changes to make the Samsung design more appealing, but doesn't specifically instruct Samsung to copy iPhone design techniques.

As you can see, the internal Samsung document presented at trial by Apple says the Samsung phone provides a "strong impression that iPhone's icon concept was copied." The "directions for improvement" are that Samsung designers should "Remove a feeling that iPhone's menu icons are copied by differentiating design."

Samsung phones v. Apple patents

In addition to those internal Samsung documents, Apple has presented its own analysis of how Samsung's user interfaces mimic the iPhone and allegedly infringe Apple patents. For example, this is one of a series of exhibits comparing Samsung devices to Apple's "trade dress" and designs covered in an Apple design patent:

The Apple graphics go on to show a dozen or so Samsung phones, all with nearly identical user interfaces. To demonstrate that there is more than one way to design a touchscreen interface, Apple presented some of the competitors' home screens. These screens are different enough to not violate Apple's IP, in the company's view:

Apple's analysis of how Samsung tablets violate its patent describes at least one feature that anyone who uses a smartphone or tablet probably takes for granted: adjustment of scrolling speed in response to the speed of a user's finger movement. Doing it any other way would seem ridiculous, but Apple says Samsung has violated its patent by scrolling documents at a speed that is "essentially the same as the speed with which the user's finger moves." This graphic actually refers to the same patent covering the list feature, but focuses on a different claim:

The patent, covering 'List scrolling and document translation, scaling, and rotation on a touchscreen display," was filed for in December 2007 and awarded to Apple in December 2008.

We'll have to assume Samsung will argue this is obvious functionality that should never have been patented in the first place. Samsung strategy officer Justin Denison has already called the notion that Samsung copied Apple designs "offensive"—although Apple lawyers forced him to explain an e-mail he sent to Samsung employees criticizing them for not making user interfaces as attractive as Apple's.

There's a break in the trial today and tomorrow, and testimony will resume Friday. Get your popcorn ready.

600 Reader Comments

So trademark/dress infringement rests upon #3 and #5 and specific instances of #6 where the jury decides that the Samsung product looks too much like an Apple product.

An example of #6 where a Guess product looked close enough to a Gucci product that the consumer bought Guess... and when Gucci brought the suit to court, Gucci won.

My wife, being a fashion buff, talks about stuff like this all the time...That particular case, was about the logo looking too similar, which is much different than Samsung/Apple.

And how is Samsung using an image that is allegedly too similar to Apple's trademark not analogous?

Quote:

A better example would be Gucci vs Banana Republic. A while back, Gucci introduced a handbag, that had a wooden handle... Banana Republic later introduced a bag that looked nearly identical... Gucci sued... Gucci almost lost that case, because apparently looking similar (look and feel) of the handbag was not good enough.

This isn't only a "look and feel" case since Apple actually has a registered trademark, as well as patents on several UI elements.

Quote:

But fortunately, Gucci had filed patents on the manufacturing process of the wooden handle to make it easy to integrate into a handbag... Banana Republic, despite not using the same material for the handle, violated the patent when designing their knockoff, and *this* is how Gucci eventually prevailed... Of course this is from second hand knowledge, as this was explained to me by my wife while I was in college...

Sure, so that's why Apple has three utility patents in the mix alongside two trademark claims as well as four design patents.

The design patents cover look and feel, the trademark covers the brand identity, and the utility patents cover the functionality of the device.

That's not a problem; those people are using "iPhone" as a generic name, a synonym for "smartphone".

No, those people were not using it that way. Those people (who I discussed it with, at great length) thought that there was more than one iPhone: You have an Apple iPhone, a Samsung iPhone, maybe an LG iPhone. They thought that the “iPhone” was the particular software and app store on the device, while the hardware was made by any one of several licensed manufacturers. Essentially, they thought these were all like generic PCs, where you might buy one from several different manufacturers, but you are still getting Microsoft Windows, so it’s all okay. I had to explain (again, at great length) that no, you are not getting “an iPhone made by Samsung.”

That's not a problem; those people are using "iPhone" as a generic name, a synonym for "smartphone".

No, those people were not using it that way. Those people (who I discussed it with, at great length) thought that there was more than one iPhone: You have an Apple iPhone, a Samsung iPhone, maybe an LG iPhone. They thought that the “iPhone” was the particular software and app store on the device, while the hardware was made by any one of several licensed manufacturers. Essentially, they thought these were all like generic PCs, where you might buy one from several different manufacturers, but you are still getting Microsoft Windows, so it’s all okay. I had to explain (again, at great length) that no, you are not getting “an iPhone made by Samsung.”

We can all agree to disagree... My brother in law thinks all MP3 players are iPods. I bought him an MP3 player, and he calls it an iPod... He knows it's not Apple. I even asked him, he thought iPods and MP3 players were synonymous. He even calls most smartphones iTouch, because he thought all touch-devices were iTouch devices. He calls all my tablets iPads, and he knows they aren't Apple. (Well except for my actual iPad). He doesn't think iPad/iTouch/iPod were licensed names, he just thought they were colloquial. English isn't his first language either, so maybe that plays into it as well... He'll tell people to Google stuff, even tho he uses Yahoo as his search engine.... So go figure that one out...

I'm sure some people think it's a licensed name, but you can't deny some people think it's just slang....

And how is Samsung using an image that is allegedly too similar to Apple's trademark not analogous?

Because I think the whole thing is dubious as best...

From the Lanham Act:

Quote:

(A) is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

The Guess purse in question does *NOT* say Guess anywhere on it, so it is easy to think that Gucci made that purse, since there is a gigantic G on the buckle.

The Samsung phone on the otherhand.... It has an image on the box like Apple, (but others have done this before, but that's a different rant), and they have an App Drawer... But they also say *SAMSUNG* on the box and the device. So unlike the Guess Handbag, I don't see how you could confuse the *ORIGIN*, which is required to satisfy section 43a of the Lanham Act.

And how is Samsung using an image that is allegedly too similar to Apple's trademark not analogous?

Because I think the whole thing is dubious as best...

From the Lanham Act:

Quote:

(A) is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

The Guess purse in question does *NOT* say Guess anywhere on it, so it is easy to think that Gucci made that purse, since there is a gigantic G on the buckle.

The Samsung phone on the otherhand.... It has an image on the box like Apple, (but others have done this before, but that's a different rant), and they have an App Drawer... But they also say *SAMSUNG* on the box and the device. So unlike the Guess Handbag, I don't see how you could confuse the *ORIGIN*, which is required to satisfy section 43a of the Lanham Act.

So you're saying Samsung using a likeness of Mickey Mouse on their box with the caption, "Play with Sammy at Sammy's Magical Kingdom in Los Angeles!" passes muster because it clearly identifies the origin as NOT being Disney nor DisneyLand?

I think you're not reading the Lanham Act correctly.

The act of using the image confuses the origin despite the Samsung label, and that's why it's allowed for Apple to bring it up in a trademark suit.

If your interpretation is correct, as you believe, the suit never would have been allowed because the word Samsung, as you say, is clear on the box and the image.

So I don't see how you can believe your interpretation is correct given that the suit is in fact underway and the claim was not outright rejected by the court.

So you're saying Samsung using a likeness of Mickey Mouse on their box with the caption, "Play with Sammy at Sammy's Magical Kingdom in Los Angeles!" passes muster because it clearly identifies the origin as NOT being Disney nor DisneyLand?

You're reading past what I was saying... (The part where I said that was another rant).Mickey Mouse is obviously disney... The "G" combined with the Red/Green stripe is obviously Gucci...

However, the trade-dress items (depite being registered) are not obviously Apple. The two-piece box that prominantly displays the item? I posted a picture a while back of an O2 phone I bought in 2004 that did that, and it even had a picture of the device on the box... However, moving outside of that, Louis Vuitton has been using that type of box for their wallets and clutches for decades.

A while back, someone posted a picture of something from Apple and Samsung, and when I saw a picture of the box, with the little leather pull-tag on it, the first thing I thought of was not "Apple" or "Samsung", I thought, "Hey, that's the same type of box my LV belt came in."

So I wasn't saying that because the Samsung logo made it legit regardless what else is on the box, I was saying it was dubious, as I had doubts as to the merits of the actual claims, but IN ADDITION it says Samsung on the box. Especially when one of the trade dress claims was the minimalist design with lack of branding, carrier branding etc... So even tho the rest may match, the fact that it was branded, and has carrier branding on the box, made it questionable because the whole point of the original design was the lack of said banding/clutter/etc.

But anyways, I know it's in the courts, I'm basically hoping that many of Apple's trade-dress claims are rendered invalid...

Or to put into layman's terms... People expect Mickey Mouse to be Disney... People Expect Red/Green Stripe with G to be Gucci. However, I think a lot of people expect smartphones in general to be what Apple thinks is their own design, which is why I think when a picture of a Galaxy SII on a box, with samsung on it, I think people won't be confused, because they wont' think, Hey, a Samsung iPhone... They'll just think, hey a Samsung Smartphone! That's my rant...

That is obviously a pattern. A specific pattern that might, to someone, be considered distinctive. To me it looks like plaid, but the gullibility of patent/trademark office employees has been done to death on the rest of the internet, so there's no point going into it again.

In any event, it's not really the same as simply "black," which is what a) I was talking about in the first place and b) is actually in dispute in this case. Phones have to have cases; touchscreens have to have things to touch; some people like things having colors to help tell things apart on such a screen. It's an open question whether such basic and necessary functional aspects of a device can be a trademark when you clump them together in a particular arrangement.

Is choosing the same basic color of almost every other electronic device on the planet really a valid part of a trademark? Does it matter if you use symbols on your screen that nearly every other visual computer interface has used before? Is a shortcut bar a valid trademark element just because it's on a phone? I dunno. A few people in a California jury box are going to tell us.

You're not getting it, and that's okay. I'm just not going to get into a protracted and pointless argument with Apple's marketing department and a barrage of superfluous punctuation.

Apple's case clearly has merit, no matter how much you dislike the fact. I know Apple's case isn't a slam dunk, I'm just trying to show why that merit exists via reading of the law in conjunction with legal precedent.

Apple's case clearly has merit, no matter how much you dislike the fact. I know Apple's case isn't a slam dunk, I'm just trying to show why that merit exists via reading of the law in conjunction with legal precedent.

I'm not saying Apple doesn't have Merit... I'm saying that their case isn't completely the same as the referred precedents, and personally think they are much weaker... I expressed similar thoughts with the Oracle/Google debacle, but people kept insisting that the lines were clear when referring to the Johnson Controls precedent, and Google would get hosed... And I was arguing that the cases weren't as similar as people thought they were.

Apple's case clearly has merit, no matter how much you dislike the fact. I know Apple's case isn't a slam dunk, I'm just trying to show why that merit exists via reading of the law in conjunction with legal precedent.

OS aside, which phones do you think infringe grossly? I personally only feel that the Galaxy Ace does, and the Galaxy S, to a degree. I'm undecided on the tablets, it's just too much information to process.

*EDIT* I must admit, I bought a Galaxy S maybe two years ago and was under no impression that it looked like an iPhone. I had no idea it was perceived as a ripoff until I started reading up on these patent cases

I continue to find it quite amazing the number of people who read this article, then come to the comments and complain, "Apple's suing over <pick one of the many individual aspects listed>! That's so BS! That one thing is obvious/not that big a deal/not something that could cause user confusion!"

How can so many people—likely to be relatively smart people, at that, since they're reading Ars in the first place—fail to grasp that no, Apple isn't suing over any of the individual things that Samsung has copied. They're suing over all of them put together.

The concatenation of all the various design elements that go to make up the iPhone, iPad, and iOS are, simply by virtue of having been used to make up those things, more than the sum of their parts. Copying so many of them—particularly with a hundred+ page document detailing all the changes you need to make to be more like them—is very different than just looking at an iPhone and saying, "Huh. You know, I like the way our phones look just fine, except for that specific rounded rectangle shape. That's very snazzy, and I think our next phone will use that shape, even though everything else on our phone will stay the same as it was before."

Perhaps the Samsung products can be seen as derivative works. Sort of like taking a photocopy and editing it to a large extent. There are elements from the 'original' but with all the additional work that has been added it can no longer be considered a 'copy' but a derivative work. The question then becomes how much of the 'original' has to remain in order to maintain that a product is a copy of another? In my Galaxy S2 the bounce-back is enhanced by having a vibration response as well as a blue edge lighting on the edge being 'bounced'. Seems that the 'copy' has been added on to to me. If you rule that the action is a copy you will have to set a precedent that derivative work/functionality is covered by a patent.

Apple's case clearly has merit, no matter how much you dislike the fact. I know Apple's case isn't a slam dunk, I'm just trying to show why that merit exists via reading of the law in conjunction with legal precedent.

OS aside, which phones do you think infringe grossly? I personally only feel that the Galaxy Ace does, and the Galaxy S, to a degree. I'm undecided on the tablets, it's just too much information to process.

*EDIT* I must admit, I bought a Galaxy S maybe two years ago and was under no impression that it looked like an iPhone. I had no idea it was perceived as a ripoff until I started reading up on these patent cases

I haven't looked at all of them, but I think the Ace and S look closer than the later S2 and S3 wrt to the trademark. Wrt to the design patent of just an unpowered phone, I doubt any will infringe, though the one with the homescreen visible matches many more than the trademark due to some leeway in how the design patent is drawn.

I'm not certain the homescreen, alone, can be protected since its pretty standard looking.

So already that means two design patents are out the window, leaving only 3 utility patents, two trademarks, and two design patents.

I expect the Tab7 and 10.1v to be clear, but not the 10.1.

So maybe half their claims on 2/3 of the devices, and 3/4 of their claims on 1/5 of the devices.

Perhaps the Samsung products can be seen as derivative works. Sort of like taking a photocopy and editing it to a large extent. There are elements from the 'original' but with all the additional work that has been added it can no longer be considered a 'copy' but a derivative work. The question then becomes how much of the 'original' has to remain in order to maintain that a product is a copy of another? In my Galaxy S2 the bounce-back is enhanced by having a vibration response as well as a blue edge lighting on the edge being 'bounced'. Seems that the 'copy' has been added on to to me. If you rule that the action is a copy you will have to set a precedent that derivative work/functionality is covered by a patent.

That's an interesting argument, and I'd certainly be interested to see Samsung advance something like it, and what the court's response would be. However, I think it's somewhat unlikely that they'll try: more likely they'll just try to show that their products are not infringing, and besides the patents and trade dress are invalid to begin with.

You misinterpreted what I said. I wasn't calling you ignorant because of your position. I was calling you ignorant because of the bullshit you spout.

Actually you explicitly said it was because of my "continual Samsung apologism" (see above), and said it even MORE explicitly to the previous person.

You're either trying to weasel your way out of something undeniable, or you completely misunderstand the word "ignorant".

You're really struggling with this concept, aren't you? Here's what I said:

darienphoenix wrote:

Judging by your continual Samsung apologism in this and other threads on the topic, I can safely say I know more than you do.

Judging by your continual Samsung apologism [containing large amounts of bullshit]. I said nothing remotely resembling "since you support Samsung's argument, I clearly know more than you". Though it would appear you're mighty touchy about it.

They obviously are not indistinguishable. Most customers looking at a display of smartphones in a store would be able to tell the different phones apart (and quite quickly, too), including telling Samsung phones from Apple ones.

You may not realize it, but some people don’t actually realize that Apple is the only company who makes iPhones. I have literally heard non-techie friends say, “Oh, Samsung is making iPhones now.”

Could it be that they think iPhone is like "Droid", a carrier marketing thing? Or perhaps they use iPhone in the same way as Kleenex or Hoover?

Edit: never mind, i see it has already been asked and answered once. And ouch, i am not sure what hurts my head more.

They obviously are not indistinguishable. Most customers looking at a display of smartphones in a store would be able to tell the different phones apart (and quite quickly, too), including telling Samsung phones from Apple ones.

You may not realize it, but some people don’t actually realize that Apple is the only company who makes iPhones. I have literally heard non-techie friends say, “Oh, Samsung is making iPhones now.”

Could it be that they think iPhone is like "Droid", a carrier marketing thing? Or perhaps they use iPhone in the same way as Kleenex or Hoover?

Edit: never mind, i see it has already been asked and answered once. And ouch, i am not sure what hurts my head more.

It shouldn't hurt your head, it's quite common.

A lot of techies have trouble comprehending how little other people know or care about technology. Contrary to what certain people think, it's not that they're unintelligent, it's just that the average person doesn't give a shit about anything more than 'does this do the things I want to use it for'.

They obviously are not indistinguishable. Most customers looking at a display of smartphones in a store would be able to tell the different phones apart (and quite quickly, too), including telling Samsung phones from Apple ones.

You may not realize it, but some people don’t actually realize that Apple is the only company who makes iPhones. I have literally heard non-techie friends say, “Oh, Samsung is making iPhones now.”

Could it be that they think iPhone is like "Droid", a carrier marketing thing? Or perhaps they use iPhone in the same way as Kleenex or Hoover?

Edit: never mind, i see it has already been asked and answered once. And ouch, i am not sure what hurts my head more.

It shouldn't hurt your head, it's quite common.

A lot of techies have trouble comprehending how little other people know or care about technology. Contrary to what certain people think, it's not that they're unintelligent, it's just that the average person doesn't give a shit about anything more than 'does this do the things I want to use it for'.

Absolutely. I know plenty about technology, iOS vs. Android, etc. - plus I use an iPhone myself - and I've still mistaken the Galaxy for an iPhone at first glance when I see people using them in public. I can only imagine that to an average person who doesn't even know or understand what "iOS" or "Android" is, the two phones must be completely interchangeable in their mind.

We're going back and forth in this thread about whether Samsung's implementation of a particular feature is too close (or not close enough) to be considered a "copy" of Apple's, etc...but I don't think most people are even cognizant of the absolute basic fact that these are two different products in the first place.

Apple would like to know why Palm copied the Newton's grid of pictograms.

Apple would like to know why Samsung copied their LCD designs from 2001.

Your points are ridiculous. Apple said as much in presenting a screenshot of the N9. It's copying too closely that's the issue.

Exactly...It's all about taking the best practices and making them better - which is what Samsung has done IMHO. Everyone steps on everyone's incremental improvements of ideas. Apple is the only one suing everyone all the sudden over it.

Stealing good ideas and implementing them in your own products is a GOOD thing. Ridiculous software patents can go to hell.

There's a difference between stealing good ideas and copying the design, look and feel of another device to cash in on its popularity. The former is legal, the latter isn't.

They both are, actually, provided it is not done with the intent to mislead the consumer. This is why patent law is written to place the burden of identification upon the layman as opposed to any quantity of experts. You'd have to ask Samsung's lawyers, but I imagine this is why all Samsung phones intended for distribution within the United States are so prominently marked with the corporation's name; to dilute accusations exactly like the one Apple is making.

Personally I think Apple has erred thus far by focusing its attentions on several of its truly specious patents and the assertion that the iPhone "changed everything" -- which is basically impossible to present strong evidence to support. While I don't see Koh ruling entirely against Apple if they manage to get back on track and hammer home on the strongest part of their case (that Samsung or the agency responsible for doing their advertising and marketing for the product lines intended to mislead consumers by promoting the phone's App Drawer as opposed to its actual home screen) if the trial ended tomorrow she would probably receive a recommendation and hand down a judgment forcing Apple to vacate those patents and award damages to Samsung.

This by no means indicates that Verhoeven is doing an exceptional job: he's just fortunate Apple opted to lead with stupid and is taking advantage. It's hard to get a good feel for the jury, but Verhoeven seems to believe he's done a very good job selecting jurors.

When it's all over I'd love to hear from Apple's lawyers insofar as to why they felt this was the time and the way to prosecute this grievance, because right now it is looking for all the world like it could do grave harm to the corporation's image and advantage over the long term.

Will some of you PLEASE try and understand when you make these stupid comments that no single issue is the reason for the suit. "lawl apple rteh sue over rectangle" makes you look like an idiot.

"blah blah, why is Apple allowed to use a green phone but no one else is" quiet literally makes you look like you don't even have the slightest clue about what's going on but thought that you should probably just bash Apple and patients just in case.

So the question is, if every single one of those is thrown out due to prior art or enough differences as pointed out above, what legs does Apple stand on?

I mean you are arguing that the stool can stand with no legs! That yes, each element of their argument is potentially weak, but that the argument isn't...Don't you see some problems with that? How can you attack a complex argument that has 7 points, without addressing each point?

At least I thought Google would win. Here I think the marks and utility patents win built the design patents lose. I don't know what Samsung is asserting.

After browsing the utility patents I think Apple has a very reasonable shot of winning on those grounds. But they're not currently taking advantage of the strength of those utility patents (it's harder to judge with the marks and honestly I doubt either side is terribly confident on those grounds). Their strategy may be to end the trial on a strong point, but that means every day Samsung's legal team can draw the design patent discussions out, the more likely Samsung is to win, since juror attention will begin to drift.

In short, I think Apple's legal team may end up screwing over the corporation with their trial strategy.

So the question is, if every single one of those is thrown out due to prior art or enough differences as pointed out above, what legs does Apple stand on?

The chances of Apple being forced to vacate all of the patents in question in this trial approaches nil. Your question is poorly framed, of course, and the better question is "How will painting themselves into a corner with these design patents negatively impact the end result of this trial?"

So the question is, if every single one of those is thrown out due to prior art or enough differences as pointed out above, what legs does Apple stand on?

Nothing, naturally.

However I do believe there exists no prior art to the iPhone that would invalidate their trademark.

Likewise, at least one of the design patents probably holds since there isn't something like the iPhone in design (the closest might bet the Prada or F700, but those designs had keyboards while Apple's doesn't), while the much older keyboard-less Palm designs also had a significantly different overall shape-look.

The utility patents might get thrown out, or not, I don't know.

Quote:

I mean you are arguing that the stool can stand with no legs! That yes, each element of their argument is potentially weak, but that the argument isn't...Don't you see some problems with that? How can you attack a complex argument that has 7 points, without addressing each point?

Except that there's no reason to believe all the legs can get thrown out.

Of the three legs (trademark, design patent, utility patent), some aspect of each will remain standing/uncontested I think.

So the question is, if every single one of those is thrown out due to prior art or enough differences as pointed out above, what legs does Apple stand on?

Nothing, naturally.

However I do believe there exists no prior art to the iPhone that would invalidate their trademark.

Likewise, at least one of the design patents probably holds since there isn't something like the iPhone in design (the closest might bet the Prada or F700, but those designs had keyboards while Apple's doesn't), while the much older keyboard-less Palm designs also had a significantly different overall shape-look.

The utility patents might get thrown out, or not, I don't know.

Quote:

I mean you are arguing that the stool can stand with no legs! That yes, each element of their argument is potentially weak, but that the argument isn't...Don't you see some problems with that? How can you attack a complex argument that has 7 points, without addressing each point?

Except that there's no reason to believe all the legs can get thrown out.

Of the three legs (trademark, design patent, utility patent), some aspect of each will remain standing/uncontested I think.

And that is kinda my point...The other poster was trying to say that you can't argue each point, but that you have to argue them as a group. Well that is impossible, and you have to break each down as a group and then look at each claim in the group to see which ones will stand up to scrutiny.

The trademark portion, I really don't know how they will fair (I know the least about their arguments here). But to dismiss designs due to keyboards, then you have to throw out the phone they are claiming the most damages against: the Epic 4g. It had a slide out keyboard.

I do see what they are saying with the packaging, but at the same time I sold cell phones right before the iPhone came out and I can tell you that I know for a fact that the packaging they used was unique only in the fact that it had nothing else other than the iPhone image on it. Others showed the phone prominently on the front and when you opened it that is the first thing you saw. Samsung has their name/logo on the box if I remember correctly, so I don't see how that could hold up.

Design Patent: This is the portion I think is the weakest for Apple and I find it interesting that they led with this one. I would have led with the Trademark, then design, and closed with utility. That way you open kinda strong, but sandwich the weakest in the middle. The way they did it isn't doing them any favor with the overall feel toward the strength of their case. But back on topic, I think there is enough prior art to show what they did wasn't unique, but I think the safer route to go is to point out that there are as many differences as there are similarities in the way the icons look and the arrangement of those icons.

Utility Patent: This is the strongest for Apple. I think the scroll with the speed of the touch is the dumbest patent I have ever seen, and should be invalidated. The bounce effect, however I don't see how you could invalidate that one (have heard of some people mention prior art on this, but haven't seen it myself). I think their strategy on this should be that yes we did do the bounce but added other things to it as well (edge glow effect), therefore it is different enough not to infringe.

Except that there's no reason to believe all the legs can get thrown out.

Of the three legs (trademark, design patent, utility patent), some aspect of each will remain standing/uncontested I think.

And that is kinda my point...The other poster was trying to say that you can't argue each point, but that you have to argue them as a group. Well that is impossible, and you have to break each down as a group and then look at each claim in the group to see which ones will stand up to scrutiny.

There's two uses of the word "claim" in play. There are the 9 claims that Apple is asserting in the lawsuit against Samsung, and then there are the individual aspects of each "claim", which is itself also a claim.

Quote:

The trademark portion, I really don't know how they will fair (I know the least about their arguments here). But to dismiss designs due to keyboards, then you have to throw out the phone they are claiming the most damages against: the Epic 4g. It had a slide out keyboard.

For trademark infringement? Are they claiming the Epic 4G is infringing on their trademark? Or are they claiming it infringes on their design patent, or utility patent?

The issue is how close the product is when closed; the keyboard offers enough difference to make infringement hard, excepting that one of the design patents is for the homescreen, meaning the 4G may still be infringing since the homescreen doesn't rely on the appearance of the phone.

On the other hand I believe that the homescreen is vastly weaker in strength due to device constraints and prior art.

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I do see what they are saying with the packaging, but at the same time I sold cell phones right before the iPhone came out and I can tell you that I know for a fact that the packaging they used was unique only in the fact that it had nothing else other than the iPhone image on it. Others showed the phone prominently on the front and when you opened it that is the first thing you saw. Samsung has their name/logo on the box if I remember correctly, so I don't see how that could hold up.

Because the name is irrelevant to trademark infringement. Do you think Samsung would avoid trademark infringement by printing a likeness of Mickey Mouse by adding the caption, "Sammy Mouse" underneath?

If you weren't aware, the trademark in questiron is a picture of the iPhone. So long as Samsung used a picture of a similar looking phone and an open App Drawer (like on the blue Galaxy S box), there's a reasonable argument for trademark infringement.

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Design Patent: This is the portion I think is the weakest for Apple and I find it interesting that they led with this one. I would have led with the Trademark, then design, and closed with utility. That way you open kinda strong, but sandwich the weakest in the middle. The way they did it isn't doing them any favor with the overall feel toward the strength of their case. But back on topic, I think there is enough prior art to show what they did wasn't unique, but I think the safer route to go is to point out that there are as many differences as there are similarities in the way the icons look and the arrangement of those icons.

There's no prior art wrt to trademark though. There's no other phone with a black-glass surface, silver ring, and colorful icon grid with silver springboard.

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Utility Patent: This is the strongest for Apple. I think the scroll with the speed of the touch is the dumbest patent I have ever seen, and should be invalidated. The bounce effect, however I don't see how you could invalidate that one (have heard of some people mention prior art on this, but haven't seen it myself). I think their strategy on this should be that yes we did do the bounce but added other things to it as well (edge glow effect), therefore it is different enough not to infringe.

If I have a patented handle on a can opener to reduce blisters, and you take the same design and make it light an LED when too much pressure is applied, you're still violating the patent on the handle shape.

The Samsung phone on the otherhand.... It has an image on the box like Apple, (but others have done this before, but that's a different rant), and they have an App Drawer... But they also say *SAMSUNG* on the box and the device. So unlike the Guess Handbag, I don't see how you could confuse the *ORIGIN*, which is required to satisfy section 43a of the Lanham Act.

So you're saying Samsung using a likeness of Mickey Mouse on their box with the caption, "Play with Sammy at Sammy's Magical Kingdom in Los Angeles!" passes muster because it clearly identifies the origin as NOT being Disney nor DisneyLand?

How about a picture of donald duck on the cover of comic:ups, thats a marvel comis, and its Howard the Duck. Odd, it looks exactly like a Donald Duck.

Maybe that was just a error, ups here's another one, Arne Anka:

How odd. They look like Donald Duck, even more than samsung phones look like iPhones, and there definetely is a trademark, but still they don't infringe.

Except that there's no reason to believe all the legs can get thrown out.

Of the three legs (trademark, design patent, utility patent), some aspect of each will remain standing/uncontested I think.

And that is kinda my point...The other poster was trying to say that you can't argue each point, but that you have to argue them as a group. Well that is impossible, and you have to break each down as a group and then look at each claim in the group to see which ones will stand up to scrutiny.

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There's two uses of the word "claim" in play. There are the 9 claims that Apple is asserting in the lawsuit against Samsung, and then there are the individual aspects of each "claim", which is itself also a claim.

Agreed.

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The trademark portion, I really don't know how they will fair (I know the least about their arguments here). But to dismiss designs due to keyboards, then you have to throw out the phone they are claiming the most damages against: the Epic 4g. It had a slide out keyboard.

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For trademark infringement? Are they claiming the Epic 4G is infringing on their trademark? Or are they claiming it infringes on their design patent, or utility patent?

The issue is how close the product is when closed; the keyboard offers enough difference to make infringement hard, excepting that one of the design patents is for the homescreen, meaning the 4G may still be infringing since the homescreen doesn't rely on the appearance of the phone.

On the other hand I believe that the homescreen is vastly weaker in strength due to device constraints and prior art.

Ok, still trying to keep up with what phone was claimed damages for what, but like I said the Trademark is the one area that I know the least about what they are claiming.

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I do see what they are saying with the packaging, but at the same time I sold cell phones right before the iPhone came out and I can tell you that I know for a fact that the packaging they used was unique only in the fact that it had nothing else other than the iPhone image on it. Others showed the phone prominently on the front and when you opened it that is the first thing you saw. Samsung has their name/logo on the box if I remember correctly, so I don't see how that could hold up.

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Because the name is irrelevant to trademark infringement. Do you think Samsung would avoid trademark infringement by printing a likeness of Mickey Mouse by adding the caption, "Sammy Mouse" underneath?

If you weren't aware, the trademark in questiron is a picture of the iPhone. So long as Samsung used a picture of a similar looking phone and an open App Drawer (like on the blue Galaxy S box), there's a reasonable argument for trademark infringement.

No, I don't think they would get away with printing Micky Mouse and calling it "Sammy Mouse" nor should they. That isn't the point, how can you trademark putting a picture of your own original product on a box (and at this point since they have not been found guilty of any design patent infringement, it is their own original design)? Especially since this has been an accepted if not wildly popular practice for years prior. That's like me saying that I have a trademark of putting my logo on the front and now anyone that puts their logo on the front of their box infringes.

Now you could argue that the design of the Samsung phones were too close to the iPhone, but wouldn't that fall under the Design Patents?

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Design Patent: This is the portion I think is the weakest for Apple and I find it interesting that they led with this one. I would have led with the Trademark, then design, and closed with utility. That way you open kinda strong, but sandwich the weakest in the middle. The way they did it isn't doing them any favor with the overall feel toward the strength of their case. But back on topic, I think there is enough prior art to show what they did wasn't unique, but I think the safer route to go is to point out that there are as many differences as there are similarities in the way the icons look and the arrangement of those icons.

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There's no prior art wrt to trademark though. There's no other phone with a black-glass surface, silver ring, and colorful icon grid with silver springboard.

Wait so are you arguing trademark or design patent? I'm confused. But, here is the crux of what I was saying earlier and what we aggreed upon. So black phones have been popular ever since the dawn of cell phones, so nothing unique there. Silver ring - Phones have had fake chrome/silver accents for as long as I can remember. Colorful icons - not unique. Grid - not unique. Silver springboard - not unique (see windows or any other operating system that has quick launch icons). So of all of those things, not one of them are unique. There are even examples of phones having almost all of those, or of Samsung's prior concepts having all of those. So this is one of those examples I was talking about with having a stool with no legs.

I know your response will be Micky Mouse and how his attributes aren't unique but put them all together and it is protected. Well there are plenty of examples of near copies out there. See Mighty Mouse. Black fur? Check. Tan face? Check. White gloves? Check. Big ears? Check. Red Pants? Check. So I just named five similarities for you between the two, and you only list four for Samsung & Apple. I can name tons of difference between the two mice, and the same could be said for the phones.

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Utility Patent: This is the strongest for Apple. I think the scroll with the speed of the touch is the dumbest patent I have ever seen, and should be invalidated. The bounce effect, however I don't see how you could invalidate that one (have heard of some people mention prior art on this, but haven't seen it myself). I think their strategy on this should be that yes we did do the bounce but added other things to it as well (edge glow effect), therefore it is different enough not to infringe.

If I have a patented handle on a can opener to reduce blisters, and you take the same design and make it light an LED when too much pressure is applied, you're still violating the patent on the handle shape.

So incremental improvements aren't different? Interesting. I guess we should tell Apple since that is what all their patents are. Just taking something existing and adding something to it. And I guess there goes at least a half century of "inventions".

The Samsung phone on the otherhand.... It has an image on the box like Apple, (but others have done this before, but that's a different rant), and they have an App Drawer... But they also say *SAMSUNG* on the box and the device. So unlike the Guess Handbag, I don't see how you could confuse the *ORIGIN*, which is required to satisfy section 43a of the Lanham Act.

So you're saying Samsung using a likeness of Mickey Mouse on their box with the caption, "Play with Sammy at Sammy's Magical Kingdom in Los Angeles!" passes muster because it clearly identifies the origin as NOT being Disney nor DisneyLand?

How about a picture of donald duck on the cover of comic:ups, thats a marvel comis, and its Howard the Duck. Odd, it looks exactly like a Donald Duck.

Maybe that was just a error, ups here's another one, Arne Anka:

How odd. They look like Donald Duck, even more than samsung phones look like iPhones, and there definetely is a trademark, but still they don't infringe.

come on donald duck doesnt wear a red ie. and that second one looks more like daffy duck to me.

Look, it's obvious that Samsung has copied the crap out of Apple devices. That's one of their major strategies. The only real question is should this be allowed or not? Should patents like these even be granted? I like the prescription drug process, where only the inventor can sell it for a few years, enough to earn back their R&D investment, and then it's open to all comers for generic manufacture and sale.

"We'll have to assume Samsung will argue this is obvious functionality that should never have been patented in the first place." But it was, and it should. Apple made it the right way.

The competition should be focusing in new and great ideas, not copying what the other did successfully

RIGHT!

Apple invented cell phones! Oh wait, not really. Well surely they invented icons... oh wait. I know they invented touch screens! No? Speakers? No? Bluetooth? Well at least they wrote the kernel and underlying OS. Wait that's freebsd and someone else wrote it? Ok. Well they invented software! No? I know! They invented using the finger to flick through a list on a screen! They didn't do that either? App Store! They invented the idea of a central repository of software that can be installed! Oh, they didn't do that either.

This argument is driving me up the wall. I look at an iPhone and it's cool. The app store and all that was a great idea, the technology has all matured to a point that some slick software brought it all together in a cool new way. But there was literally nothing "invented" by Apple to make that happen.

Literally every single real technology under the hood was created before them by someone else, they copied and extended to make a great new product. It's ridiculous to then stand there and claim your novel invention, which is really nothing more than a slick combination of other novel inventions they had nothing to do with, constitutes a new "special" sort of novel invention others can't copy.